Monday, April 23, 2012

The Kentucky Court of Appeals has ruled that the City of Hopkinsville can "withhold home addresses, telephone numbers and driver’s license numbers
of people listed in arrest reports and criminal complaints," including people charged
with crimes, crime victims, and witnesses in criminal cases, the Kentucky New Era reports. Mayor Dan Kemp told the newspaper he did not interpret the decision to apply to closed cases, but writer Jennifer P. Brown noted, "The ruling makes no distinction between police cases that are open or closed."

The case began when the New Era asked city police for records "related to allegations of stalking, harassment and terroristic threatening," Brown reports. The city refused to give the paper "reports in open cases and
all reports involving juveniles. (Juvenile court proceedings are closed
and the names of juvenile defendants are not released. However, state
law does not require police to withhold the names of juvenile who
witness or are victims of crimes.) Of the records released in the city’s initial
response, the city redacted a wide range of identifying factors,
including a person’s race, gender, date of birth, ethnicity, address and
telephone number."

The newspaper appealed to Attorney General Jack Conway, who ruled in its favor. The city appealed to Christian Circuit Court, and after losing initially, got a ruling that it could "routinely redact addresses, telephone numbers, driver’s licenses and
Social Security numbers," Brown writes. "The newspaper did not dispute the practice of
withholding Social Security numbers." Soon afterward, police adopted a policy of "redacting addresses and telephone numbers on the reports it makes available every day to media outlets." The Christian County sheriff has no such policy.

Privacy trumps public interest: A three-judge panel of the Court of Appeals upheld the policy, citing the exemption in the Kentucky Open Records Act for "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" and the court's 1994 decision that allowed redaction of employees' names, addresses, phone numbers, birthdate and Social Security number from state workers' compensation injury reports.

That court "reasoned that disclosure of such information would infringe upon the employees’ right to privacy in the home," Judge Laurence VanMeter wrote. "Such a right, which this court described as 'the right to be left alone,' is one of 'our most time-honored rights' and 'has long been steadfastly recognized by our laws and customs.'"

The law requires courts to balance the privacy right with the public's interest in disclosure, and the New Era argued that lack of the contact information would make it more difficult to report on the activities of the police department. But the court said the information itself would reveal "nothing about the Hopkinsville Police Department’s execution of its statutory functions."

The newspaper's attorney, Jon Fleischaker of Louisville, said the court failed to understand the role of journalists to investigate citizen reports that the police did not handle their cases properly. “It is often the case that we are investigating
inaction as opposed to action,” he said. “The way you investigate inaction is to go
to people who wanted action and didn’t get it.”

The paper was investigating police handling of such cases after a 2009 apartment fire started by a Molotov cocktail. "A man suspected of throwing the Molotov cocktail also doused a resident with gasoline, according to police. Neighbors told the New Era the suspect had threatened the couple living in the apartment, and according to court records, he had previously threatened a woman living in the apartment. He was later charged with arson."

Impact is limited, but implications may be great: Because the court said on its opinion that it was "not to be published," the decision has no precedental authority outside Christian County, but Fleischaker said it has statewide implications because another part of it defies everything he knows about the state Open Records Act, which he helped write and rewrite.

"On the question of redacting information from police reports, the
appeals court shifted the burden from a public agency to those making
open records requests," Brown reports. "This means that a public agency could withhold a particular piece of
information in each record it releases, and it would not have to justify
the redaction unless challenged."

UPDATE, June 10: The New Era is asking the state Supreme Court for discretionary review of the case. New Era Publisher Taylor Hayes said he and Fleischaker are discussing whether to appeal. Editor Eli Pace said, “Quite simply, this ruling prevents not just the media but anyone from
holding law enforcement officials accountable for how they handle
witnesses and victims. I’ve never seen a public
agency anywhere else even try to withhold information as basic as what
we were seeking. The court’s ruling is very disheartening.” (Read more)

Saturday, April 7, 2012

Many elements of the Tea Party have been outspoken in favor of government transparency, but for the U.S. senators most identified with the movement, that does not extend to making political television expenses more accessible to the public.

Sens. Rand Paul of Kentucky (right), Pat Toomey of Pennsylvania, Jim DeMint of South Carolina and Mike Lee of Utah "have asked the Federal Communications Commission to reconsider its proposal to have TV stations put their political files online," reports John Eggerton of Multichannel News. They were joined by Roy Blunt of Missouri and John Boozman of Arkansas.

The political files, which show who buys the time, how much and when, must be made available for public inspection at a station or cable-company office during regular business hours. The FCC is expected to approve April 27 on a regulation that would require stations in major markets to put the information in an online database. "Broadcasters argue . . . that to maintain an online, real-time system would cost staff time and money better spent on local news and other public service," Eggerton writes.

OPINION: That money could also be spent on executive salaries, shareholder profits or some other thing besides public service. In their letter, the senators said the proposal would carry "heavy compliance costs," but as someone who has inspected many of these files at stations, and is familiar with how the same information is already maintained electronically, it's hard for me to imagine that the compliance costs would be very high. And putting them online would make them much more accessible to rural journalists. –Al Cross, director, Institute for Rural Journalism and Community Issues

UPDATE, April 9: Because of complaints from stations, "The proposal will give smaller stations two more years to start uploading new additions to their files about political ad spending. At the outset, only the affiliates of ABC, CBS, NBC and Fox in the top 50 TV markets will be required to do so," reports Brian Stelter of The New York Times. "The FCC says the initial uploading will cost less than $1,000 for a typical station, and will save the stations money over time by avoiding printing and storage costs. The uploaded files will be searchable — but only inside one file at a time." (Read more)

Corie Wright, senior policy counsel for Free Press, which supports online posting, told Eggerton, "It's baffling that these senators would want to hide public information in dusty filing cabinets when it could be made available to their constituents via the Internet. The public wants and needs to know who's trying to influence them over the public airwaves -- and the FCC appears to be doing the right thing by bringing this antiquated system into the 21st Century."

Eggerton notes, "Putting the political files online is part of a larger FCC effort to move station public files online and into a database managed by the FCC that is more easily searchable by the public." (Read more)

Friday, April 6, 2012

Five days after a traffic accident killed a prominent Mercer County farmer who was driving his tractor, a Harrodsburg police officer refused to release most details about it, citing moral grounds and a promise to the family of the 21-year-old driver of the other vehicle that "he would keep their son’s name out of the media until after his investigation was complete," Todd Kleffman of the Advocate-Messenger in Danville reported Wednesday.

Only under orders from Police Chief Billy Whitenack did Officer Jeff Pearce identify the 21-year-old as William Phillips of Boyle County. Pearce still refused to release the name of a passenger in Phillips' vehicle or say what type of vehicle it was. "On Saturday, Mercer County Deputy Coroner Chuck Bugg said the driver of
the second vehicle was airlifted from the scene but was unsure of the
person’s identity or extent of the injuries," Kleffman reported. Bugg also
identified John "Van" Landrum as the decedent "after Harrodsburg police released a
statement saying only that one person died as the result of a
two-vehicle collision on US 127."

State police are not involved in the investigation. "Pearce said he would not release any more information on the crash until after
his investigation is complete, which he said could take between 10 days and a
month," Kleffman reported. "Pearce told a reporter releasing
information about the crash went against his morals. He also said he promised
Phillips’ family he would keep their son’s name out of the media until after his
investigation was complete." (Read more)

Sunday, April 1, 2012

A bill that could increase secrecy of child-abuse records at the Cabinet for Health and Family Services failed to win passage on the next-to-last day of the legislative session and appears to be dead. "Senate Majority Leader Robert Stivers, a Manchester Republican, said some senators had questions about the bill and it appears unlikely to pass," Deborah Yetter of The Courier-Journal reports.

Senate Bill 126, originally a social-work licensing bill, includes in its Section 10 provisions of House Bill 200 to "create an outside panel of experts to review child deaths and
serious injuries, with the goal of better detecting those that result
from abuse or neglect. It also would create an outside office to review
continuing operations of the state’s child welfare system," Yetter writes. "And
it would clarify the definition of child abuse to spell out that any
adult living in the home or a sibling older than 16 could be considered a
perpetrator of abuse.

The bill would also limit what the cabinet must disclose about child-abuse deaths and serious injuries as a result of child abuse, so the Kentucky Press Association lobbied against it. One portion of the bill would prohibit the cabinet from releasing "the name or any identifying information of a child who has suffered a near fatality, or any information on a sibling or children living in the home of the child who suffered a fatality or near fatality," which is defined as an injury that places a child in serious or critical condition.

KPA counsel Jon Fleischaker, chief author of the state Open Records Act, testified before a Senate committee that if the measure had been law when Amy Dye, a 9-year-old Todd County girl, was killed by her adoptive brother, the public may have never known about her death, or that the brother confessed to killing her.

Westrom told Yetter the cabinet insisted on the language. The cabinet has been embroiled in legal action for more than a year over its refusal to turn over records relating to the death of children under its care. Franklin Circuit Judge Phillip Shepherd has ordered the cabinet to disclose its records in those cases while withholding minimal information, and the cabinet has appealed. For Yetter's story, click here.